United States v. Tanguay

United States District Court, D. New Hampshire

April 27, 2017

United Statesv.Eric Tanguay Opinion No. 2017 DNH 083

ORDER

Joseph
A. DiClerico, Jr. United States District Judge

Eric
Tanguay is charged with possession of a controlled substance
with intent to distribute in violation of 21 U.S.C. §
841(a)(1). Tanguay moves to suppress all evidence obtained
from a vehicle that he was driving when he was arrested. The
government opposes the motion.

The
court held a hearing on the motion to suppress on March 21,
2017. During the hearing, the government presented testimony
from Nashua police officer Adam Rahyo, who participated in
the arrest and search. The defense called no witnesses.

Standard
of Review

The
defendant bears a threshold burden to show a Fourth Amendment
violation in support of a motion to suppress. United
States v. Young,835 F.3d 13, 19 (1st Cir. 2016); see
also Rakas v. Illinois,439 U.S. 128, 132 n.1 (1978)
(“The proponent of a motion to suppress has the burden
of establishing that his own Fourth Amendment rights were
violated by the challenged search or seizure.”). The
defendant's threshold burden includes the “burden
of establishing that he was seized.” United States
v. Fields,823 F.3d 20, 25 (1st Cir. 2016). Once the
defendant shows that a warrantless search or seizure
occurred, the government bears the burden of showing that the
warrantless search or seizure was nevertheless lawful.
United States v. Winston,444 F.3d 115, 123-24 (1st
Cir. 2006); United States v. Acosta-Colon, 157 F.3d
9, 14 (1st Cir. 1998).

Background

In the
early morning of March 31, 2016, Rayho, dressed in his police
uniform, was on patrol in a marked police SUV. A little after
midnight, Rayho drove by a strip mall parking lot and noticed
a blue Ford SUV (the “Ford”) parked with two
people inside. The Ford was parked 100 to 150 feet from a
Taco Bell restaurant and no other vehicles were around it.
Rayho returned to the lot about twenty minutes later and
noticed that the Ford was still there. Rayho knew that most
of the businesses located around the lot were closed but that
the Taco Bell and a 24-hour gym remained open. Rayho became
concerned about the Ford because it was parked alone. Based
on his concern, Rayho entered the lot and approached the
Ford. The time was 12:29 a.m.

Rayho
parked his car seven to ten feet behind the Ford. Rayho then
turned on his rear blue strobe lights, which pointed away
from the Ford. Rayho did so because the parking lot was dark
and he wanted to alert any officer providing backup as to his
location. Rayho also turned on his front spotlights,
[1]
which illuminated the interior of the Ford. Rayho testified
that he turned these lights on for officer safety purposes.

Rayho
then approached the Ford on the driver's side. Using his
flashlight to illuminate the Ford's interior, Rayho began
a conversation with Tanguay, the driver, and Jacqueline
Westley, the passenger. Rayho asked Tanguay and Westley for
their names, which they gave him. Rayho recognized the name
“Eric Tanguay” because a confidential informant
in an unrelated investigation had told him that someone with
that name was involved in using and distributing controlled
narcotics. Rayho then asked Tanguay and Westley what they
were doing in the parking lot. They told Rayho that they were
eating food from Taco Bell. Rayho then joked with them that
he also enjoyed eating food from Taco Bell. Rayho saw that
both Tanguay and Westley were, in fact, eating Taco Bell
food.

Rayho
asked Tanguay and Westley for identification. They responded
that they did not have a driver's license with them.
Tanguay also informed Rayho that he did not own the Ford.
Rayho asked Tanguay if there were any weapons or drugs in the
car, and Tanguay said there were not.

Rayho
asked Tanguay if it would be all right if he returned to his
cruiser to run a records check on him. Rayho testified that
one of the reasons he made this request was to determine if
the Ford had been reported as stolen. Tanguay agreed and
assured Rayho that he had a valid driver's license. As
Rayho was returning to his cruiser, he noticed that Officer
Jonathan Earnshaw had arrived to provide backup.
Earnshaw's cruiser was parked behind Tanguay's
vehicle. About a minute into the records check, Rayho
observed Westley crouching down and appearing to reach under
the seat. Rayho was concerned about Westley's movements.
As a result, he immediately stopped the records check, exited
his cruiser, and walked back to the driver's side of the
Ford.

When
Rayho got to the Ford, he noticed that Westley was sitting
upright in her seat. Rayho then asked Tanguay again whether
he had any identification. This time, Tanguay said that his
driver's license was in the trunk and asked if he could
retrieve it. Rayho agreed to let Tanguay show him the
location of his license but said that he would prefer to
retrieve the license for officer safety reasons. Tanguay got
out of the Ford, and, as he did, Rayho observed what appeared
to be the butt of a pistol tucked into the driver's side
door.

Tanguay
and Rayho walked to the rear of the Ford. Tanguay told Rayho
that his license was in a backpack in the trunk. After the
trunk was opened, Tanguay informed Rayho that his license was
inside a wallet in a small pouch of the backpack. Rayho
retrieved the wallet from the backpack and removed
Tanguay's driver's license. Rayho noticed a large
amount of currency in the wallet, which Tanguay told him
totaled around $2, 000.[2] Rayho also noticed that the largest
compartment of the backpack was secured with a padlock.

While
still at the rear of the Ford, Rayho asked Tanguay about the
gun in the driver's side door. Tanguay told Rayho that it
was a BB gun and apologized for not telling Rayho about it
earlier. Tanguay also told Rayho that he had a conceal carry
permit but did not have that with him.

Rayho
told Tanguay that he was going to check the gun to determine
whether it was a BB gun. Before checking the gun, Rayho asked
Westley to get out of the Ford, which she did. After checking
the gun, Rayho concluded that it was, in fact, a BB gun.
Rayho then asked Tanguay for consent to search the remainder
of the Ford.[3] Tanguay responded that such a search was
“fine.” During the search, Rayho, with the help
of his flashlight, peered under the passenger's seat
where Westley had been sitting. There he found a partially
opened black sunglass case, which held a hypodermic needle.
Rayho removed the sunglass case, which was already partially
opened, and opened it the rest of the way. Rayho saw that the
hypodermic needle was loaded and contained a brownish liquid.
Based on Rayho's training, he believed that the brown
liquid was either heroin or fentanyl. The sunglass case also
contained a pill, a cotton ball, and a form of Narcan, which
is a medication used to treat opiate overdoses.

After
discovering the sunglass case, Rayho asked Westley if she
could come to the front of the Ford to speak with him.
Westley agreed, and Rayho asked her what she and Tanguay had
been doing that night. Initially, Westley said that she and
Tanguay had the Ford all evening and were at their friend
Dennis Higgins's house. When confronted with the loaded
hypodermic needle, however, Westley told Rayho that her
friend Danielle had borrowed the Ford while they were at
Higgins's house. Westley did not provide any information
about Danielle. Rayho then asked Westley again if she had a
driver's license and this time she retrieved a temporary
New Hampshire driver's license from her purse.

Rayho
then asked Tanguay if he could speak with him. Tanguay
agreed. During their conversation, Tanguay told Rayho that he
and Westley had been at Higgins's house that night but
that no one had borrowed the Ford while they were there.
Tanguay also told Rayho that he saw Westley with the sunglass
case and that he believed that there were drugs in the case
because he knew that Westley was a drug user. Rayho then
arrested Westley, who was taken to the Nashua Police
Department.

Rayho
and Tanguay then moved to the rear of the Ford where Rayho
asked Tanguay about the lock on his backpack. Rayho observed
that Tanguay appeared to become very nervous. Tanguay stared
back at Rayho, as if he were trying to think of an answer.
Tanguay eventually told Rayho that an “unknown
individual” had placed a lock on the backpack. Rayho
arrested Tanguay at approximately 12:55 a.m. for possession
of drugs in a motor vehicle. Earnshaw drove Tanguay to the
police station.

Rayho
tried to call the registered owner of the Ford but was
unsuccessful. Because he could not locate the owner, Rayho
called a tow truck to remove the Ford from the lot. Rayho
removed Westley's purse, the backpack, and two cell
phones in order to bring them back to the police department.
Rayho also completed an inventory form documenting the items
left in the Ford. During this process, Rayho completed a
records check on the Ford and determined that the Ford had
not been reported as being stolen. The Ford was then towed to
an independent tow yard. At the police station, the purse was
placed with Westley's personal property and the cell
phones were placed with Tanguay's personal property.
Rayho kept the backpack for safekeeping and because he wanted
to ask Tanguay about it.

At
around 3:30 a.m., Tanguay agreed to a post-Miranda,
unrecorded interview.[4] Rayho brought the backpack into the
interview room and asked Tanguay about it. Tanguay sighed and
put his hands on his head. He told Rayho that the backpack
was his. He then informed Tanguay that he believed that there
was something illegal in the backpack. He further elaborated
that an unnamed person had put three to five illegal items in
his backpack earlier and then placed the lock on it. Tanguay
also asked Rayho what his bail would be if there were
multiple illegal items in his backpack. Rayho responded that
he did not know what the bail would be because he was not a
bail commissioner.[5]

Rayho
then asked Tanguay for his consent to search the backpack.
Rayho informed Tanguay that he could refuse to consent but
that he believed there was probable cause for a search
warrant. Rayho also informed Tanguay that because of the time
he would not seek a warrant until later in the day. Rayho
explained to Tanguay that if he refused to consent to the
search, his bail would be set for his misdemeanor charges but
other charges might follow at a later date if he found
anything illegal in the backpack. Tanguay consented to a
search of the backpack.

Tanguay's
consent was memorialized in a Nashua Police Department
consent to search form. Rayho prepared the form by filling in
the necessary information, including indicating that the item
to be searched was Tanguay's backpack. After filling out
the form, Rayho gave it to Tanguay to read. The form, as
completed, provided that Tanguay had “been informed of
[his] Constitutional Right not to have a search made of my
[backpack]

without
a Search Warrant and of my right to refuse to consent to such
a search.” Tanguay informed Rayho that he understood
the form and had no questions. Tanguay then signed the form.

Rayho
next removed the lock with bolt cutters. Inside the main
compartment Rayho found several items, including pills, which
he believed were prescription medication, 49.1 grams of
methamphetamine, 30.94 grams of fentanyl, drug paraphernalia,
and an electric scale. Rayho also found pieces of mail that
had Tanguay's name on them.

Discussion
Tanguay contends that the evidence obtained from the Ford and
the backpack should be suppressed because it is the result of
illegal seizures and searches. In support, Tanguay argues
that Rayho stopped him without any legal basis and that the
stop exceeded the scope of the Fourth Amendment's limits.
Tanguay also argues that the evidence should be suppressed
because the warrantless searches of the Ford and the backpack
violated the Fourth Amendment.

In
response, the government argues that Rayho properly stopped
Tanguay and that the search of the Ford was justified based
on the consent exception to the warrant requirement. The
government also contends that the search of the backpack was
justified under the consent, automobile, and inevitable
discovery exceptions to the warrant requirement.

I.
Seizure

The
Fourth Amendment protects “the right of people to be
secure . . . against unreasonable searches and
seizures.” U.S. Const. Amend. IV. The Fourth
Amendment's protections against unreasonable seizures
“apply not only to traditional arrests, but also to . .
. brief investigatory stops generally known as Terry
stops.” Fields, 823 F.3d at 25 (internal quotation
marks omitted).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;For a
stop to be legal, it must be objectively reasonable based on
two inquiries. United States v. Arnott,758 F.3d 40,
43 (1st Cir. 2014). First, &ldquo;police are not allowed to
make an initial stop unless they have a reasonable,
articulable suspicion about an individual&#39;s involvement
in some criminal activity.&rdquo; Id. Second,
“[i]f the initial stop passes muster, actions
undertaken during the course of the stop must be reasonably
related in scope to ...

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